V.R. Alangavaram Chetty Vs. the Municipal Council of Pollachi Represented by the Commissioner and anr. - Court Judgment

LegalCrystal Citation

legalcrystal.com/816126

Subject

Commercial;Civil

Court

Chennai High Court

Decided On

Mar-06-1957

Reported in

(1957)2MLJ56

Appellant

V.R. Alangavaram Chetty

Respondent

The Municipal Council of Pollachi Represented by the Commissioner and anr.

Cases Referred

Public Prosecutor v. Alangaram Chettiar

Excerpt: - orderrajagopala ayyangar, j.1. the proper construction of section 244 of the madras district municipalities act (v of 1920), is the point raised in this petition which prays for the issue of a writ of prohibition against the municipal council, pollachi, from enforcing the licensing provisions under section 249 read with schedule v of act (v of 1920) in regard to the petitioner's tea stalls.2. the petitioner has been running tea stalls within the railway premises of the pollachi station for the past several years. the municipal council of pollachi had in conformity with the provisions of section 249 of the district municipalities act published a notification in the district gazette and had also otherwise proclaimed to the public as required by that section thatno place within the municipal.....

Judgment:ORDER

Rajagopala Ayyangar, J.

1. The proper construction of Section 244 of the Madras District Municipalities Act (V of 1920), is the point raised in this petition which prays for the issue of a Writ of Prohibition against the Municipal Council, Pollachi, from enforcing the licensing provisions under Section 249 read with Schedule V of Act (V of 1920) in regard to the petitioner's tea stalls.

2. The petitioner has been running tea stalls within the Railway premises of the Pollachi station for the past several years. The Municipal Council of Pollachi had in conformity with the provisions of Section 249 of the District Municipalities Act published a notification in the District Gazette and had also otherwise proclaimed to the public as required by that section that

No place within the municipal limits or at a distance within three miles of such limits shall be used for any one or more of the purposes specified in Schedule V without the licence of the executive authority and except in accordance with the conditions specified therein ' (Section 249(1).

In pursuance of this notification the Municipality required the petitioner to take out a licence for conducting the tea stalls in the Railway premises on the ground that tea stall was a business which could not be carried on without a licence as such use fell within Schedule V (j). As the petitioner defaulted in complying with these provisions, the Health Officer of the Municipality served a notice upon the petitioner calling upon him to take out a licence and threatening him with prosecution in default. The petitioner thereupon has filed this petition seeking the issue of a writ of prohibition prohibiting the first respondent-Municipality from levying the licence fee and otherwise enforcing the provisions of the District Municipalities Act by prosecuting the petitioner.

3. Two points are made in the affidavit in support of this petition as grounds for denying the jurisdiction of the Municipal authorities. In paragraph 2 of the supporting affidavit the petitioner stated that the railway premises of the Pollachi station where the petitioner was having his tea stalls are outside the area of the jurisdiction of the Pollachi Municipality. I do not consider that there is any substance in this contention since, even though the premises of the Railway are the property of the Union Government, they are not outside the territorial limit of the Municipality.

4. The second point raised has a little more substance. It is based upon the language of Section 244 of the District Municipalities Act as now in force. In its present form that section runs:

244. Nothing in this Act or in any rule, by-law or regulation made thereunder shall be construed as requiring the taking out of any licence or the obtaining of any permission under this Act or any such rule, by-law or regulation in respect of any place in the occupation or under the control of the Central or the State Government or of a market committee established under the Madras Commercial Crops Markets Act, 1933, or in respect of any Government property or of any property belonging to such market committee.

The arguments submitted by learned Counsel for the petitioner was that this section is made up of two parts, (1) the earlier part which exempts from the operation of the Act and the rules made there under, places in the occupation or under the control of the Central and other Governmental and statutory authorities and (2) without reference to any question of occupation, the property of Governments and of the market committee. Learned Counsel for the petitioner invoked the benefit of both these parts as sustaining the exemption of the petitioner's business from the operation of the licensing provisions. In regard to the first part he said that the terms of the agreement between the petitioner and the Railway under which the former was permitted to run the stalls amounted merely to a licence and not a lease and that therefore the premises-that is the railway platform where the business was conducted, still continued to remain in the occupation of the Central Government, and that under the opening words of the section neither the District Municipalities Act including Section 249 nor the rules, or by-laws made thereunder would apply to these premises and to the business carried on by the petitioner in them. In regard to the second part of the section which referred to the property of the Government not being subject to the provisions of the Municipalities Act, the argument was that it was absolute in its terms and that as undoubtedly the railway premises were the property of the Union, the entire District Municipalities Act including the licensing provisions could not be applied to a business carried on in that property.

5. Learned Counsel also pointed out the distinction in the language employed in the corresponding provisions of the Madras City Municipal Act (Act IV of 1919) and the Madras District Boards Act (Act XIV of 1920) and relied on this diff-rence as emphasising his point that the exemption granted by Section 244 of the Municipalities Act was really absolute in its character and was not conditioned by the Government themselves engaging in the activity in order to obtain the exemption. Section 278 of the City Municipal Act corresponds to Section 244 of the District Municipalities Act which I have to construe. Section 278 runs:

278. Nothing in this chapter shall be construed as requiring the Central Government or the State Government to take out a licence in respect of any place in the occupation or under the control of such Government or in respect of any property belonging to the Government.

The corresponding section of the District Boards Act (Act XIV of 1920) which is Section 192 is perhaps clearer even than Section 278 of the City Municipal Act in regard to the present point, for it runs:

192. The provisions of Section 189 and 190 shall not apply to places used by Government for the purposes mentioned in the said sections.

6. These three Acts, the City Municipal Act (Act IV of 1919), the District Municipalities Act (Act V of 1920) and the District Boards Act (Act XIV of 1920) were all enacted on dates very near to each other and if on that date Section 244 of the District Municipalites Act employed language as is now to be found, there would be substance in the contention put forward by learned Counsel for the petitioner. Section 244 however as it was originally enacted in 1920 adopted the same language as that which was employed in Section 278 of the City Municipal Act. Counsel for the petitioner does not suggest that if Section 244 ran as before he could successfully put forward any contention negativing the jurisdiction of the municipality from enforcing its licensing provisions on the petitioner, for on the terms of the section as it then stood the exemption was as regards the Government taking out a licence and the exemption extended not merely in regard to places which were their property but also those which were under their ocupation. Where the property was that of the Government but the business that was being carried on there was by a private individual, Section 244 of the Municipalities Act as it then stood (just as Section 278 of the City Municipal Act as it continues to-day) did not preclude a municipality from acting under Section 249 and requiring a licence to be taken out for carrying on any one of the businesses specified in Schedule V. Section 244 was enacted in its present form by the Madras District Municipalities (Third Amendment) Act, 1942 (Act XXXVIII of 1942). The purpose of this amendment as recited in the Statement of Objects and Reasons was:

The main object of this clause is to exempt market committees established under the Madras Commercial Crops Markets Act from the necessity to obtain licences under the District Municipalities Act. The section has also been extended in two respects. It will cover permissions as well as licences. It will also apply not only in regard to the provisions of Chapter XII but generally in regard to the provisions of the Act or of any rule, by-law or regulation made under it.

The changes effected were intended to achieve this three-fold purpose. But in so doing, the words which referred to the taking out a licence by the Government as being the subject of exemption were omitted and the first part of the section ran as if the crucial thing was the place being in the occupation or under the control of the Government etc., instead of the Governmental etc., activity there being exempted. The words at the end of the section referring to ' the property of the Government ' were left intact but by reason of the omission of the words which I have indicated just now, it assumes in its present context a different colour.

7. The learned Advocate-General who appeared for the Municipality submitted that notwithstanding that the words of Section 244 were wide and if read standing alone lent some support to the construction put forward by the petitioner the same should be construed with reference to two matters : (1) The legislative history of the provision and the place of Section 244 in the scheme of licensing regulations. (2) The Court should avoid a construction which would lead to a patent absurdity.

8. Before considering the submissions on the construction of Section 244 I might refer at the outset to certain submissions made by learned Counsel for petitioner arising out of the railway premises being the property of the Union. Learned Counsel urged that it was a general principle of statutory construction that the Crown was not bound by statute unless expressly named and also that Grown property could not be subjected to local taxation except with the consent of the Crown. In my judgment these points do not really arise for consideration, since the Government is specifically referred to in Section 244 and what we are now really concerned with is the scope of the exemption granted by that provision. I therefore refrain from dealing with decisions like Coomber v. Justices of Berks (1883) L.R. 9 A.C. 61 and Province of Bombay v. Municipal Corporation Bombay (1947) 1 M.L.J. 45 : L.R. 73 IndAp 271 : (1946) F.L.J. 118 : I.L.R. 1947 Bom. 186 , which were referred to during the course of the arguments.

9. I shall now proceed to consider the proper construction of Section 244. In doing so, I have to take into account the main argument of learned Counsel for the petitioner that on the terms of Section 249 the unit of the licensing is not the activity in a place but the place itself. He derived this proposition from the language of Section 249(1) and sought support for it in the decision of the learned Chief Justice in Senthilanathan Chettiar v. Panchayat Board of Mohanur : AIR1952Mad182 .

In this decision the point considered was whether when a place within the Panchayat limits was being used for more purposes than one each of which required to be licensed under the relevant provisions of the Madras Local Boards Act, it was sufficient if the occupier obtained one licence or whether it was necessary for him to apply for and obtain as many licences as there were purposes for which he used the premises. The learned Chief Justice held that in respect of any one place it was a single licence and single licence fee that were contemplated though the place might be used for one or more of the purposes specified in the Schedule to the Act. In my judgment, this decision does not compel an answer in the petitioner's favour in regard to the question now raised. It is no doubt true that Section 249(1) requires that the place should be within the municipal limits and that an activity which requires to be regulated is conducted at that place. From this it does not follow that the emphasis is upon the place and not upon the activity. Without an activity of the categories enumerated in Schedule V in any particular case Chapter XII is not brought into operation and therefore the proper view to take is that it is the activity that gives rise to the occasion for the regulation of which it is the object of that chapter to provide.

10. If the light that is sought to be derived from Section 249(1) be put aside, what remains is merely the language of Section 244 which has to be construed in the light of the purposes for which the same was enacted. As I have indicated already, the terms of the section are no doubt very wide but in my judgment the construction contended for on behalf of the petitioner would lead to obviously absurd results and has therefore to be rejected. For instance take the case of a building which has been requisitioned by Government, say under the provisions of the Madras Buildings (Lease and Rent Control) Act. Such a building would be in the occupation of the Government. If the entire Municipalities Act were held inapplicable to such a building, it would mean that the owner could reconstruct the building without reference to the municipal building regulations; that wells, tanks or ponds may be dug or constructed on the premises without the permission of the municipality. It is unnecessary to multiply the anomalies to which this construction would lead.

11. As I have mentioned earlier, the learned Advocate-General urged that the section could be construed in the light of (a) its previous history consisting of (1) the form in which it was couched and (2) the reasons which prompted the alteration in the language effected in 1942(b) the fact that in regard to the matter now on hand there is no point of difference between the situation in the areas to which the District Municipalites Act applies and those to which the City Municipal Act as well as the District Boards Act apply; (c) the reason for the exemption in favour of Government and (d) the absurd results which would follow the adoption of the construction suggested by the petitioner. In my judgment, the learned Advocate-General was well-founded in every one of these points. That it is permissible to refer to the legislative history of a provision as an aid to its construction is far too well settled to require authority or elaboration. That the form in which Section 244 stood before its amendment in 1942 would have exempted only the Government carrying an activity specified in Schedule V is beyond dispute and not contested.

12. The next question is whether by reason of the difference in the language brought in by the amendment Act (XXXVIII of 1942) any radical change was intended to be or was brought about. It is in this context that the Statement of Objects and Reasons together with the notes on the clause which provided for this amendment essume importance. It is therefore pointed out that three changes were intended to be effected in the provision : (1) the exemption was extended to cover not merely licences but also permissions; (2) Section 244 as it originally stood exempted only licences under Chapter XII but by the amendment this was extended to licences and permissions required by any provision of the Act; (3) the previous exemption covered only the State and Central Governments; by the amendment the authority functioning under the Commercial Crops Markets Act was also brought within the exemption. If then these were the only objects which were sought to be achieved would it be a proper rule of construction to hold that by reason of the amendment a radical departure was made in the very concept of the exemption and that not merely the activity of Government or other statutory body named in the section but that of every private individual was also exempted merely because this activity was conducted in a place of which the Government or other statutory body was the owner or the occupier. I agree with the submission of the learned Advocate-General that Section 244 still continues to exempt only the activities of the Governments, Union and State, and that of the statutory body named in it.

13. Learned Counsel for the petitioner was no doubt right in submitting that the normal and ordinary rule for the construction of any statute is to construe it accoring to the plain, literal and grammatical meaning of the words used. But this rule is subject to the condition that

however plain the apparent grammatical construction of a sentence may be, if it be properly-clear from the contents of the same document that the apparent grammatical construction cannot be the true one, then that which, upon the whole, is the true meaning shall prevail, in spite of the grammatical construction of a particular part of it.' Pollock, C.B. in Waugh v. Middleton (1853) 8 Exch. 352

The more literal construction of a statute ought not to prevail if it is opposed to the intention of the Legislature as apparent by the statute, and if the words are sufficiently flexible to admit of some other construction by which that intention can be better effectuated.

The rule then as to the literal construction of a statute yields where the results of such an interpretation leads to startling and absurd results at once uncontemplated and which would frustrate the very purpose of the statute.

14. Adverting next, to the language of the amended section, as compared with that, which it replaced, apart from the three changes in its content to which I have already referred, there is this difference to be noticed. The original Section 244 named the Government (Central and Local) as the body which was exempted from taking out the licence but this is not specified in the amended section there being an ellipsis in this regard the amended section not containing any indication as to the person who was exempted. The very short question of construction which arises on this is, was this non-specification of the authority who was to be exempt intended to bring in private individuals like the petitioner. It would be seen that under the original Section 244 there was an identity between the authority whose ownership or occupation of property was specified and the authority who was exempted from taking out licences and as I shall show presently there was very good reason behind this exemption. By reason of the amendment effected in 1942, the authorities whose ownership or occupation of property was comprehended within the provision, were enlarged by the addition of the statutory body created by the Commercial Crops Markets Act, 1938 and the exemption was therefore provided for the activities of the newly brought in body also. The question is whether the correlation or identity between the bodies whose ownership or occupation of property was specified and the grant of immunity to such bodies was intended to be departed from so as to grant an exemption to those who were not the authorities whose ownership or occupation was specified in the section. The question can be answered only one way viz., that the ellipsis in the section as regards the person entitled to exemption should be read as extending only to those whose occupation or ownership is referred to in it, as this is the only logical and reasonable interpretation that could be put on it. If the section had specifically referred to the persons engaging in the activity in terms comprehensive enough to include private individuals also the Court would have been compelled to give effect to it. It had not done so but had left the persons whose activities were to be exempted without specification. As there is no intelligible reason for extending the exemption to persons beyond those speci-fically set out as the owner or occupier of property, the departure from the form in which the section originally ran could be attributed only to inaccurate or inept draftsmanship.

15. This conclusion is further strengthened by the fact that Section 278 of the City Municipal Act as well as Section 192 of the District Boards Act exempt only the Governmental activities carried on in places owned by them or in their occupation. I can see no adequate reason why a distinction should have been made in regard to the municipal areas by exempting in the latter case activities even of private individuals. Moreover there is good reason why these municipal enactments should exempt Governmental activities, a reason which would not extend to activities by private individuals in premises owned by Government. After all Government have control over municipal authorities, vide for instance Sections 38, 39 etc. and under these provisions the Government might take action against the municipal authorities for failure to enforce the law. If, 'therefore, 1 he Government are the ultimate authority for the enforcement of these regulations, whose object is to ensure the health, safety and convenience of the inhabitants of these local areas, they might be taken as not likely to carry on their, activities to contravene the health or sanitary regulations or cause inconvenience to the members of the public. This affords a just ground for the exemption. But no such reason could be put forward for exempting the activities of private individuals which require to be regulated and the fact that these activities are carried on in a place owned by the Government affords no ground whatsoever for exempting such activity from regulation and therefore of licensing.

16. I have already referred to the absurd results which would follow if the construction sought to be put upon the section by the petitioner were accepted, and there is no need for me to repeat them. I am therefore of the opinion that notwithstanding the language of the section the exemption is only in favour of the activities of the Government and of the statutory bodies named in that section.

17. Learned Counsel for the petitioner invited my attention to a decision of Basheer Ahmed Sayeed, J., in Municipal Council, Bimilipatnam v. Ripley and Co., Ltd. (1951) 2 M.L.J. 657, as an authority in his favour. This decision was rendered in a revision petition against a decree in a small cause suit passed against the Municipal Council. The plaintiff was a merchant who was directed by the Municipality to take out a licence for storing jute which was evidently done on land in a minor port which belonged to the Government. The District Munsif who decreed the suit held that Section 244 granted the exemption. Basheer Ahmed Sayeed, J., allowed the revision by the Municipality on the ground that the exemption did not cover private parties. But the passage relied on by learned Counsel for the petitioner was this:

The object of that section is that the Government of India or the Provincial Government or the Committee appointed under the Marketing of Commercial Crops Act is doing service on behalf of the community as a whole in storing goods belonging to the Government or to the Committee, and by no-stretch of imagination can it be said that a private trading concern which stores goods which are licen-sable for the purpose of storage should also be exempted.

Learned Counsel urged that the provision of refreshments to the passengers was an amenity which it was in the public interests of the Government to provide and that it therefore came within the reasoning in the passage extracted above. I am unable to accept this argument as sound. The observations are wholly obiter and the learned Judge was not called upon to consider the precise scope of the exemption. There is also another decision of this Court on the proper construction of Section 244 in which a view similar to that I have expressed above was taken. Somasundaram, J., in Public Prosecutor v. Alangaram Chettiar (1955) 2 M.L.J. 555 , said:

The principle is that if the Central Government or the State Government or any committee appointed under the Marketing of Commercial Crops Act does anything in a place in their occupation or under their control for which a licence is required as per Schedule V of the District Municipalities. Act, they are supposed to do it in the interests of the public in which case the licence prescribed under the provisions of Section 249 of the Act is not necessary according to Section 244. But if a private person in the same place or premises under the occupation or control of those bodies does a similar thing, he would be required to take out a licence under Section 249 and pay the prescribed licence fees. Sections 244 and 249 of the District Municipalities Act have to be read and interpreted only this way.

18. I entirely agree with the conclusion here indicated.

19. In my judgment the Municipality was within its rights in requiring the petitioner to take out a licence for conducting the stalls in the railway platform. The writ petition fails and is dismissed. There will however be no order as to costs.